UPDATE: We have a live update from the courthouse. You can see it at the bottom of this post

We haven't been covering the CA50 Election Mess as often as in the recent past --- while Brad's been on the road and otherwise occupied --- but we have been keeping our ears to the ground, so to speak. (Yes, they get dirty, but so what? We can hear things coming before they happen. It's cool; you should try it.)

My friends, we have been hearing distant rumblings of great power. To get you up to speed quickly...

The CA50 U.S. House special election between Francine Busby and Brian Bilbray was held on June 6, on illegal Diebold voting machines as has been reported here many times. (Click here for a good recent summary of the situation.) On June 13, Bilbray was quickly sworn in to the House of Representatives while thousands of votes were still being counted back in San Diego. (This surprised and angered many voters, especially since a poll taken three weeks before the election showed Busby ahead by 7%.) On June 29, the election was finally certified --- in favor of Bilbray --- by the Registrar of Voters Mikel Haas.

The election was contested on July 29 after Haas refused to allow for a hand count of the ballots, as allowed by California state law. And on August 22, defendants filed a brief in the case to dismiss, stating that because Bilbray has already been sworn in (by the Republican House of Representatives,) the California Court has no jurisdiction whatsoever and the House has exclusive jurisdiction to judge who its members are and the qualifications of those members.

According to an email sent to The BRAD BLOG this evening from attorney Paul Lehto...

The defendants' position is that the court is powerless (i.e. without jurisdiction) to do anything about this election contest, because Bilbray was sworn in only 7 days after the June 6, and long before the election was legally final on or about June 29.

This premature termination of the election in the 50th Congressional District by the swearing in took place while votes were literally still being counted and provisional votes were still being counted, and also this premature swearing-in took place well before the 1% ballot audit required as part of the certification process, and also occurred fully 16 days prior to the official certification of the results.

The defendant's premature swearing-in at the command of Washington DC politicians, if it had any legal effect at all, necessarily means that if there's no power for a Court in San Diego County to protect and review our elections for Congress, there was certainly no power and no jurisdiction for defendant Registrar Haas to certify the results of the election, either.

The swearing in simply terminated the election in mid-count. Consequently, the defendants' arguments about the court's lack of power also mean that this uncertified election does not legally exist, in the legal sense that the election never happened, and this election never became final because it has never been certified at a time when anybody in San Diego had any power to do anything about it.

Because no election is decided or over until it's officially certified, this election was actually decided in Washington DC, and not decided in San Diego's 50th Congressional District.

So there you have it. This is the stick with which Paul Lehto is trying to beat a corrupted electoral machine back into shape.

The judge is set to give his decision on the jurisdictional matter Friday, determining whether or not the case will be tossed out based on the argument of the defendants. The court hearing on this matter begins at 1:30 p.m. Pacific time in San Diego.

UPDATE... Michael Collins at Scoop has more. And now, so do we --- below the fold...

I'm pleased to share a hot-off-the-press message from attorney Paul Lehto, in which he explains what I've been talking about, but better than I could do it ... and he explains much more, too!

Please relax for a moment and enjoy this:

Election Nullification Argued By Election Contest Defendants

Defendants Allege in Motion to Dismiss that Swearing-In Bilbray on June 13th or 17 days Prior to Certification Deprived San Diego Superior Court of Jurisdiction

In briefs filed August 22 with San Diego Superior Court in the Busby/Bilbray election contest in California’s 50th Congressional District, the Defendants argue that the House of Representatives has exclusive jurisdiction over the qualifications of its Members under Art. I, sec. 5 of the US Constitution. But if this is indeed the case, then Registrar of Voters Mikel Haas was also without jurisdiction to certify or finalize the results, the exclusive and sole jurisdiction resting with the House of Representatives! Thus, no legal election was ever concluded or had in California’s 50th Cong. District, according to the necessary conclusion of the defendants’ arguments against jurisdiction of the Court.

It thus appears now based on the signed pleadings of the defendants that the US media overlooked one of the great political stories of the year: A power grab by the Speaker of the House to terminate any action in San Diego County except those actions that they choose not to attack the jurisdiction of.

A brief chronology helps to reveal the posture of the case:

On June 6, 2006 Republican Brian Bilbray allegedly slightly outpolled Democrat Francine Busby in the special election for California’s 50th Congressional District, despite Busby’s lead in the polls going into the election. There were immediate cries of foul following the election due to major irregularities, including electronic voting machines sent out to the homes and cars of volunteers for up to 12 days prior to the election, and irregular election results like huge mega-precincts of absentee ballots where turnout was thousands of percent more than registered voters.

On June 13, 2006, Bilbray flew to Washington, DC and was sworn in as a member of the United States House of Representatives by House Speaker Dennis Hastert.

On or about June 30, 2006, 17 days after Bilbray was sworn in as a member of the House, Mikel Haas, Registrar of San Diego County, officially completed the audit of election results required for certification, and officially certified the election of Bilbray over Busby based on 163,931 votes cast, of which 2,053 votes were said to be cast on Diebold TSX touchscreens, and the remainder scanned via Diebold Accuvote OS computers.

On July 31, 2006, the Contestants filed an election contest, seeking a hand recount and to invalidate the election on several grounds, not only including the affirmative evidence of irregular results, but also including the stonewalling of citizen information requests and the pricing of recounts at an estimated $150,000 that made it difficult or impossible for any citizen to tell who won the election.

On August 22, 2006 the defendants moved to dismiss, arguing that the swearing in of Bilbray deprives everyone else of jurisdiction including specifically the San Diego Superior Court because Art. I, sec. 5 of the US Constitution has been held to mean that the House and Senate are the judges of the Qualifications of their Members, one of those qualifications is supposed to be “election.”

The facts of the case thus present unique questions of Constitutional law, that appear to be a case of first impression. In Roudebush v Hartke, the US Supreme Court held in 1972 that the State’s jurisdiction under Art I sec. 4 of the US Constitution to define the time place and manner of elections gave the States jurisdiction over the counts and the recounts of votes. But the defendants attempt to distinguish that case, because the Senate in the Roudebush case set an example of responsible constitutional behavior by awaiting the results of the Court challenge before swearing in. However, in this case, the House had no such patience, and in no uncertain terms is telling San Diego Courts and San Diego county where to go, and that is wherever those who are completely powerless as against the mighty lords of the House of Representatives go.

In a filling in San Diego Municipal Court yesterday, attorney Paul Lehto outlined the core of the dispute in stark terms:

Defendants are in effect arguing for the remarkable proposition that unilateral self-serving actions by a majority party in the House of Representatives to shuttle in a member of the same party can be effective, even if those actions do violence to and amount to circumvention of other sections of the US Constitution as well as the California constitution.

These other provisions include Art I, sec 4’s requirement that States control the Time, Place and Manner of Elections, another Art. I sec. 2 requirement that elections for the House take place every two years “by the People,” and the fundamental constitutional right of the people of San Diego’s 50th Cong District to vote and to have that vote counted under both federal constitutional law as well as California’s Constitution in Art II, sec. 2.5 which states:

““{A voter} who casts a vote in an election in accordance with the laws of this state shall have that vote counted.” Calif. Elec. Code § 15702 further defines the scope of what “shall” be done under this constitutional provisions by defining “vote” for the express purpose of this Constitutional section as follows: “For purposes of Section 2.5 of Article II of the California Constitution , “vote” includes all action necessary to make a vote effective in any primary, special, or general election, including, but not limited to, voter registration, any other act prerequisite to voting, casting a ballot, and having the ballot counted properly and included in the appropriate totals of votes cast with respect to candidates for public office and ballot measures.”

By including both prerequisite acts to voting as well as post-voting acts and acts of appropriate tabulation, it is clear that the full scope of counting is included within the protection of the California Constitution. This broad scope naturally includes a second counting, also known as a recount. Of course, in the electronic voting context, this “recount” would be the first real count by any human being(s).

Lehto and Simpkins filed a withering response to this argument that the San Diego Superior Court is powerless to protect San Diego voters. They point out what the Court must conclude if it were to accept the defendants’ jurisdictional arguments:

Clearly, the swift swearing in did not end the election in the 50th Congressional District, and it did not render everything, including the certification of results weeks later, nugatory and without “jurisdiction.” If this swearing in had this effect, then in the course of dismissing this case the Court would be bound to conclude that the certification of the results after the swearing in of Bilbray was without force and effect, without jurisdiction, and in contravention of principles of federalism, as Defendants argue. That conclusion, however, requires either an absurdity, or the conclusion that our Congressional election was canceled by decision of the Speaker of the House, before all the votes were fully counted, and well before certification.

Ongoing interference by the House of Representatives or persons associated therewith continues. Attorney Paul Vinovich, Counsel to the House Administration Committee, Chaired by the “retiring” Congressman and architect of HAVA Bob Ney of Ohio, arranged to deliver a letter to San Diego Superior Court presiding Judge Yuri Hofmann, arguing the constitutional exclusive jurisdiction of the House.

This type of communication with judges is forbidden, unless all other parties are involved, under the prohibition against ex parte contact with judges. In his own handwriting, Vinovich wrote on the fax cover to plaintiff’s attorney Lehto, “Letter delivered to court last evening.” Lehto received the letter via fax just before 9 a.m. Thursday morning, many hours after the letter was admittedly provided to the judge by Vinovich himself. The letter is posted here [PDF], complete with its circular and contradictory reasoning that the subsequent certification of Bilbray after the rushed swearing in confirmed the correctness of the swearing in.

The Defendants literally argue that the Courts are powerless to stop them (i.e., the Courts are “without jurisdiction”). Friday will reveal whether the courts are indeed powerless in San Diego County. But if they are powerless, then the Registrar of Voters was also powerless to complete the election, and we have a premature termination of the election process, decided in Washington DC, and enforced on San Diego. Much like Bush v. Gore in 2000, the process of elections has been short circuited by a legal coup d’etat that makes no legal sense, but which courts may or may not have the courage to see through.

One thing is sure. The defendants must also believe, having signed the briefs on constitutional motions to dismiss, that the certification of the election was invalid, because it occurred weeks after the swearing-in of Brian Bilbray deprived everyone except the House of Representatives of any jurisdiction to do anything. On that point of invalidity, the parties all now apparently agree.

Well ...

Ain't that beautiful?

Thanks again, Paul. And best of luck in court!

LIVE UPDATE: We have recently received the following email from Paul Lehto:

Hi. I'm in the courtroom right now after meeting with the judge in chambers with all counsel to decide how this is going. We have wifi from a hispeed cell on this laptop. We're on a ten minute recess, then the judge will hear on our Constitutional issues (or rather the defendant's motion) only, because it goes to the predicate issue of the court's authority to proceed. On Tuesday, the court will hear the anti-SLAPP motion brought against the citizen Contestants, our discovery motions, and issues regarding the recount availability.

The issue is joined, directly on the authority or power of the Court to proceed. Can the Court protect our elections, or not?

So by this reasoning, Congress could, at its discretion, decide to do away with elections for its members altogether, and merely engage in appointments of new members to replace outgoing ones from then on.

The favored candidate doesn't need to win the election via certified results anymore under this Swift Swearing approach, the favored candidate need only *appear* to have won OR at least there is a claim made by the powers-that-be that their favored candidate has won.

Never mind the defendants' position --- we know that's got to be whacky. What is, or will be, the judge's position? That's the question.

Still, I hope this gets written up everywhere. People need to see the caliber of "legal" "minds" at work on our democracy. El Torturador is trying to redefine torture so as to defend his bosses, and now we have, who? the San Diego County Attorney? arguing that Congress can appoint its members? How hypnotized is the populace. Let's just see.

You silly gooses.. What's the big deal? CLEARLY, Bilbray was the guy everyone wanted, and Congress just hurried along that desire. Besides, he needed to be able to speak on the floor about bills and such -before- the certification process could be finished. And that Repuke vote was important, so there's nothing wrong with moving things along.

If this kind of swift swearing flies, then the majority party need never concede power to the minority party, against its will. It could always just swear folks in before during or right after the election, and claim a lack of jurisdiction on the part of anyone else to question it, like they argue in this case.

…and, as usual, the corporate MSM doesn't shed light on this very important story.

Don't kid yourself - NEITHER IS THE SELF-PROCLAIMED "ADVERTISE LIBERALLY" SET OF SUPERBLOGS.

They have flamed, deleted, and banned any dialog of this since the 2004 election. They are no better than the MSM and operate the same way - creating "experts" by endlessly linking to the same few people - usually folks that have nothing to say and absolutely no expertise or credibility to say it.

Brad, on the otherhand, is doing important work yet is totally ignored by kos, atrios, c&l, fdl, americablog, digby, greenwald, and the usual gang with their "holiday inn express" style of expertise.

Brad - why are you carrying an icon and link for a group that does not support you?

Why are people he so quick to jump on the MSM lack of coverage but these same folks give os, atrios, c&l, fdl, americablog, digby, greenwald ect. a free pass on the fact they refuse to carry the truth too?

When I saw this "swearing in" on Lou Dobbs, at the time, I waved goodbye to representative democracy. Those in power hold on to it with a death-grip, claim a priori rights to maintain it, and thus complete the coup d'etat initiated in 2000.

Those so-called "liberal" blogs which ban discussions like this are actually working the other side of the political spectrum. I've long since stopped linking to them. Kos might as well be being underwritten by the GOP, for all the true digging he seeks to bury (how's that for a metaphorical impossibility!?)!! Hmmmm.....

Kos is a republican that could not get the attention and "star" status he craves - he started kos to take pokes at repugs. I am grateful for that, but that hardly qualifies on to proclaim themselves to be the online voice of liberals.

He and his gang seek to limit dialog and redefine "liberal" and "progressive" politics in their own image - totally abandoning the socio-economic and labor issues that allow working families to raise children with dignity.

The repug agenda is nothing less that a war on working families and children. Kos and agenda are trying to use the internet to redirect liberal politics away from these issues.

Oh - kos and gang also try to frame everything as "competence" instead of "criminal." This enables the lying liars to continue their law breaking, theft, treason, war crimes, crimes against humanit, and destruction of democracy.

"Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members" from Article I, Section 5.

In no way does that say that the House can appoint members. I would assume "election" means "election" based on the rest of the Constitution as well as on the fact that the term "election" wouldn't be used in Section 5 in a cavalier, erroneous manner.

So, no election (certainly no certified election at the time) means no legitimate swearing in. (Of course, the certification itself was not legitimate. That's the flip side of the whole thing.)

That would be some judge who would rule that Article I, Section 5 nullifies much of the rest of the Constitution as well as state laws.

The American revolutionists would have attacked these fascist lying constitution shredders until death. Then as more and more informed real patriot Americans join their forces, their battle cry will be "we will take back the OUR WHITE HOUSE and hang these greedy murdererous rusters responsible for 911."

Unfortunately, Kos can claim it because he has a demonstrably high readership --- the highest of all liberal blogs, if I'm not mistaken. It would not be so unfortunate if certain issues, certain matters of fact, evidence, truth were deemed fit subjects for his blog.

This is the level of contempt the "A-Holes in charge" hold for "the people"...

Jenkins writes:

"These falsifications directly contributed not only to emergency personnel and citizens not taking adequate precautions to prevent exposures, but also prevented the subsequent correct diagnosis of the causative agents responsible for the pulmonary symptoms. Thus, appropriate treatment was prevented or misdirected, and loss of life and permanent disability undoubtedly resulted."

Fascist dictatorship self serving to THEMSELVES.
F all other Americans, world citizens, and other species. ONE SMALL EXAMPLE: Big wild cats in California and where these endangered animals still live in this country can not take any more habitat loss from Bushit land developements.

You of course know that if it wasn't for Brad we wouldn't know anything about this. Thank You Brad for giving us this forum, the news might be shit but at least we know about it. At least we are steps ahead of other people who won't listen to reason or read the writing on the wall. I agree about the popular liberal blogs. They refuse to talk about the things I think are important, the stolen 2000, 2002, 2004 elections, 9-11, all the murders that are taking place worldwide, Ray Lemme, scientists, journalists, people associated with enron, The 2 men in europe that found the wiretaps. I can't believe no investigative journalist wants to expose all this. I imagine they are scared but someone anyone must step up to take this on. It makes me wonder "Just what the FUCK is really going on" and while I was surfing I came upon this......... Rudy's Aide found strangled in Greenwich Village HMMMMMMMM I wonder how he fits into this http://www.nysun.com/article/38472?access=740848

We can't let the "We're the Deciders" House of Representaives' RAW, UNBRIDLED, UGLY, POWER GRAB of San Diego Voters' votes go untelegraphed. This has implications for every single Congressional and Senate race.

We must cut and paste and fax, e-mail this to our area's papers and broadcasters. Call them. I would imagine that CNN's Lou Dobbs and Catherine Crier, (Olbermann?) would carry this story.

Julie - too bad we can't get the fake "advertise liberally" circle to support the only person doing real investigative reporting on these issues.

What a sham - shame on atrios, kos, fdl, americablog, digby, greenwald, crooks & liars, and the rest of those that would steal the heritage of liberal politics to promote themselves while using an endless circle of links to create the illustion that they now speak for us.

In Mexico, when the election was stolen, millions of people camped out in the streets in protest.

That's not what an American revolution looks like. But I was in court today and I've seen the beginnings of an American revolution with my own eyes. The people who are donating to this lawsuit (and to similar lawsuits across the country) are revolutionaries. Understanding that they no longer have the right to vote with their ballots, they are voting with their wallets.

Imagine if millions of Americans, instead of protesting in the streets and getting their heads bashed in, started voting with their wallets. Here are some of the things you can do if you'd like to be a revolutionary:

1. Donate to BradBlog.

2. Donate to the VelvetRevolution. (If you wish you can earmark your donation for the CA50 lawsuit.)

3. Buy blue. For real. Even if you have to order online, travel further, and pay more, just stop buying anything from any corporation that donates money to Republicans. If you want to donate to Republicans, why not send them the money directly? If you don't want to donate to Republicans, stop doing it indirectly.

4. Flood the left gatekeeper sites with truth. If they ban us all, they'll be left talking to themselves, which would serve them right. Do NOT donate money to any site that doesn't take your voting rights seriously --- it only encourages them.

5. Do not donate money to any political party or candidate who isn't fighting for your voting rights and for the things that you believe in. If they're not representing you, don't support them. Do you remember who Al Gore's Vice-Presidential running-mate was? Does that tell you anything? If somebody promised to defend your voting rights and then reneged on that promise, don't believe them when they repeat the same lie. How many times can you get fooled? If you care about your voice in government, only donate to people who also care about your voice in government and have demonstrated their concern by their actions, not by empty promises.

A few million Mexicans camped out in the streets to protest a rigged election may or may not accomplish anything. But if a few million Americans vote with their wallets, I guarantee you it will accomplish something. With that much purchasing power, we can accomplish any damned thing we want --- even a nonviolent revolution. And it won't be televised, so cancel your cable subscription (except for the computer). You can watch anything you need to see online. How many million Americans have to cancel their cable subscriptions before we start getting the kind of new coverage we want? Five? Ten? I don't have cable so I don't know what it costs, but if it is around $50 a month, ten million cancellations comes to half a billion dollars a month, or more than $5 trillion a year. All we have to do is let them know who their customers are, or used to be, and what they have to do to get our patronage back. Do you really think the Republican Party or the Heritage Foundation is going to give them $5 trillion a year to persuade them to just ignore us?

We've still got the power. When they won't let you vote with your ballot, vote with your wallet.

Kos can claim it because he has a demonstrably high readership — the highest of all liberal blogs

High readership - yes, BUT IT IS NOT A LIBERAL BLOG. He is really just promoting himself (and has been very successful) and creating a "liberal brand" is part of the promotion.

He isn't liberal and doesn't support any liberal issues outside of being agaist the chimperor and the republican culture of corruption. Yes, I am grateful that the fake "advertise liberally" group does do that.

But that is not what makes one "liberal" - Kos and his cohorts are stealing the proud traditions of liberal and progressive politics by proclaiming to be the voice of others while flaming, banning, and deleting real liberal isses.

The recent kos event in LV is a great exampl - the usual gang was there pretending to be "experts" within the limited area that they have been annointed (i.e. firedog lake the Plame experts despite being consistently wrong with all their fitzmas crap last year).

No one would attend a session on labor issues - one of the key issues that liberals used to work with - nothin' liberal in that gang. They are just like the mainstream media pundits - each is paraded around as being an expert despite the fact that they have no more background or insight than the man on the stree.